Ethics and the city attorney race

By the day, Spin Cycle is gaining more appreciation for the work of attorneys in our midst. Where else can a weekly columnist of twisted mind unearth such rare earthy samples of literary gold in a town with a mayor who’s button is perpetually stuck on replay?

Yes, there was Mayor Kevin Faulconer this week—in full photo-op mode sporting a pristine apron and smile while serving a milestone senior meal—repeating his long-ago-tired mantra about the hapless, injury-plagued Chargers and the city’s equally hapless pursuit of a new stadium deal with the disinterested team.

Fair deal for taxpayers…Fighting to keep the team. Frankly, Spin Cycle didn’t even bother scribbling down what Faulconer actually said, given his tendency to wax humdrum. (Wonder how that will play this week in the Big Apple in front of the NFL overlords. Offoff-off Broadway is Spin’s guess.)

It was also fun to see momentum build for activist attorney Cory Briggs’ Citizens Initiative to boost the city’s hotel tax and reform how that money is spent, including a hesitant nod from the normally stoic San Diego Union-Tribune editorial board with a snarky “deal with the devil” chaser.

But fear not, our legal practitioners have arrived in time to entertain us with their…words! Let’s peer into the smoldering cauldron of what promises to be one of the more entertaining political races in 2016 San Diego: the battle to replace termed-out City Attorney Jan Goldsmith.

In one corner at this early stage, you will find the relatively quiet campaigns of Republican Robert Hickey (a deputy district attorney unable so far to garner the endorsement of his boss, District Attorney Bonnie Dumanis, probably because he endorsed her opponent when she last ran for reelection) and Democrat Mara Elliott, a Goldsmith lieutenant.

In the other corner, however, stand two Democrats whose backers appear ready to tear at each other’s throats: Rafael Castellanos, a port commissioner and commercial attorney with a land-use bent, and Gil Cabrera, a private attorney and former chairman of the San Diego Ethics Commission.

It is Cabrera’s relationship with the latter campaign oversight agency that has the Castellanos camp in a tizzy of late, with little evidence of any impending let-up.

In an unusual Oct. 1 letter to the Ethics Commission, Castellanos requested that the commission “recuse itself from the 2016 campaign for San Diego City Attorney.” He argued that Cabrera’s service on the board from 2005 to 2010, his occasional work as an “outside consultant” since then, and his relationships with current staff members who worked under him should remove the commission from “any oversight” of the race “to eliminate even the possibility of unfairness and bias in the workings of the commission.”

In the letter, Castellanos suggested that the state Fair Political Practices Commission “can easily step in and provide the necessary enforcement of local election laws. All campaigns would still be subject to the same reporting and campaign finance laws.”

The only problem with that? San Diego’s campaign laws are tougher than the state’s and would not be enforceable without special state legislation, according to the FPPC and the commission’s general counsel.

Commission attorney Christina Cameron, in a Nov. 2 memo, said the city’s Municipal Code “contains numerous provisions that are applicable only to elections held in the City of San Diego which the FPPC could not enforce. Accordingly, if the entire commission were disqualified or recused itself, there would be no local oversight of the city attorney race.”

There are no campaign contribution limits for local candidates in state law, Cameron noted as an example. “Therefore,” she wrote, “if the FPPC were the sole agency responsible for oversight of the 2016 city attorney race, the individual contribution limit and numerous other local campaign laws could not be enforced by the FPPC.”

In order to enforce local campaign laws, special state legislation would be required, a rarity, she added. Last week, the commission agreed, rejecting the call to recuse. According to folks attending that meeting, the commission’s newest member—attorney, La Mesa City Councilmember and former local Republican Party bigwig Bill Baber—made the most impassioned case, saying to do so would send a signal that there’s “no sheriff in town.”

Jay Wierenga, communications director for the FPPC, confirmed Cameron’s contention. “The FPPC has not and does not have the authority to take over enforcement of local election laws for a local ethics agency,” he said in an email, “except where we have express statutory authority to provide such enforcement and a contract to do so.”

This is occurring in San Bernardino County and will soon in Stockton, but Wierenga added, “In essence, the Legislature has to pass a bill to give us the statutory authority.”

Spin reached out to Castellanos to discuss this, but he referred questions to Bill Wachob, his campaign consultant. Wachob didn’t mince words.

Wachob noted that the commission’s executive director, Stacey Fulhorst, has already recused herself from oversight in the city attorney’s race (Cameron has taken over those duties), so “if it was good enough for her…we wanted to make that good enough for the entire commission. We believe the relationship is too close. We’re trying to eliminate the appearance of any impropriety.”

Asked what prompted the letter, Wachob—a long-time veteran of the local political landscape—launched into an attack on early complaints already filed against the Castellanos campaign, citing “minor things like not listing our contributors in alphabetical order. Campaigns are difficult enough. They don’t need to be harassed with stuff like that.

“We’re certainly in support of both the spirit and the letter of the ethics laws and fully expect to comply with all aspects of those laws, but we don’t want to be unfairly scrutinized as well.”

Then he let slip a political reality. “Unfortunately, ethics commissions have become political footballs,” he said. “I’ve done it, and every other consultant does it. They use the ethics commission so they get an article, and then they use the article in paid advertisements. That’s the only reason we’re having a conversation. We just want to limit the amount of opportunities that Cabrera has to do that.”

For his part, Cabrera denied being the source of the early complaints and questioned his opponent’s grasp of the law. “Had this request been granted, our local campaign-finance laws (like campaign contribution limits/bans on organizational giving) would not have been enforced in our election,” he wrote to Spin. “I’m disappointed someone who seeks to be the city’s chief legal counsel would have wanted all of our local laws ignored.”

As for his relationship with the commission, Cabrera said only one commissioner remains from his time of service and “the only staff member I had a supervisory relationship with has voluntarily recused herself to avoid any appearance of conflict.”

Wachob countered that no one is suggesting that candidates be immune to local laws, saying, “That’s absurd.” He added that FPPC oversight “happens all over the state” but couldn’t immediately provide examples. He later referred Spin to former FPPC executive director Wayne Ordos in Sacramento.

Ordos, while noting some issues could be resolved through the FPPC, said a blanket recusal would be problematic. “I may have given Bill a misimpression. I’m not sure it could happen,” Ordos said.